Direction requiring advance submission of cross-examination questionnaire under the POCSO Act procedurally improper as it defeats the accused’s right to fair trial

Kerala High Court: A Single Judge Bench comprising of Sunil Thomas, J. set aside the order of Sessions Judge requiring advance submission of questions to be put to witness in cross-examination holding the same to be improper.

The instant petition was preferred by an accused facing trial for offences punishable under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) alleging lack of fair trial. It was submitted that, after the conclusion of victim’s examination-in-chief, a questionnaire of cross-examination was advanced to the Court, copy whereof was also furnished to the prosecutor and the case was adjourned after ten days. The petitioner contends that this procedure was in total disregard of principles of cross-examination as it would enable the prosecutor to prepare the witness to answer the questions.

The High Court observed that as per Section 33 (2) of the POCSO Act, counsel appearing for the accused, while recording the examination-in-chief, cross-examination or re-examination of the child, is obliged to communicate the questions to be put to the child to the Special Court, which shall, in turn, put those questions to the child. 

While the Act does insulate a victim against aggressive cross-examination, the court has to ensure that the relevant questions which may be embarrassing to the witness are decently conveyed to him without leaving out the spirit and soul of the said question, to ensure fair trial of the accused.

Section 33 of the Act does not empower the Court to demand a questionnaire from either side in advance before the examination of witness. Such an act would negate the right of the accused to a fair trial since, defeat the very purpose of cross-examination and make it an empty formality.

In view of the above, the petition was allowed with a direction to the court below to permit the counsel for petitioner to continue cross-examination in accordance with law.[Unnikrishnan R v. Sub Inspector of Police,2018 SCC OnLine Ker 4642, decided on 31-10-2018]

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